Coronavirus: your rights if your operation is cancelled
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A senior lawyer says that cancelled operations in the NHS should not be taken lying down.
Kate Goodman a senior solicitor at Patient Claim Line said that in light of the new NHS regulations to cancel non-emergency procedures, patients need to know more than ever what their rights are to proper healthcare.
Is it commonplace for operations to be cancelled on the NHS?
The cancellation of non-emergency operations is nothing new in the NHS. Every year, during winter, operations are cancelled due to the lack of availability of beds and to ease the pressure on the NHS at a time when demand for services is at its height.
It has repeatedly been suggested that delaying an epidemic, rather than preventing it altogether, may enable the NHS to be able to cope better in the spring and summer months when demand for health services reduce.
However, this has potential ramifications for patients who are waiting for non-emergency surgeries, such as knee and hip replacements.
What are your rights if your operation is cancelled due to coronavirus?
If your operation is cancelled due to Covid-19, there are a number of things you can do.
The NHS has a maximum waiting time for non-urgent referrals of 18 weeks. This means that from the date of your referral by your doctor, you should be seen and preferably undergo treatment within 18 weeks. This target, however, is not always met and different hospitals have different waiting times for surgery.
It is not uncommon for a hospital to have a waiting time of twice this for some procedures. It is also foreseeable that the 18-week target may well be suspended entirely in the wake of a Covid-19 outbreak.
One can also anticipate that once we are over the worst of Covid-19, there will be a significant backlog of non-emergency procedures which may push surgeries back further.
If your procedure is cancelled on the day of surgery, then you should be offered another date for the procedure within 28 days, or the hospital an fund the treatment at a date and hospital of your choice.
If the hospital does not comply with this, you have a right to complain to the hospital, or the clinician who referred you for treatment. However, it is more likely that surgeries will be cancelled well before the date of surgery. In this situation, there is no right for you to be offered an alternative within the 28 days specified, though if your waiting time is outside the 18 weeks, you have a right to ask the hospital to move your care to another hospital. However, during the outbreak, the likelihood that this will result in your procedure taking place any sooner is remote. It is likely that any delays caused by Covid-19 would be a reasonable and in the public interest.
If you have already experienced a significant delay well in excess of the 18-weeks target, and you suffer a further significant delay as a result of Covid-19, there is a possibility that your wait will have become so excessive as to become a breach of duty of care. If you have suffered unnecessarily as a result of these delays, then you may have a medical negligence claim.
Why are operations being cancelled for cancer patients?
There have been a number of news headlines reporting that cancer patients are unable to access potentially life saving treatments such as operations to remove their tumours, or much needed chemotherapy.
This is understandably a very distressing time for such patients, who are already living under a cloud of uncertainty.
There is a clinical decision to be made for many patients. Chemotherapy for example, can make a patient immunosuppressed or immunocompromised, meaning their immune system is not as good at fighting infection.
Cancer patients receiving chemotherapy are more likely to become seriously ill if they catch Covid-19. Some blood cancers and cancer affect the bone marrow can also make a patient even more susceptible to infections.
Clinicians are therefore being asked to conduct a balancing exercise for all patients. They need to consider on the one hand, the degree that the cancer patient’s immune system has been/will be compromised by their treatment or underlying health conditions; on the other hand, the risk that their cancer is not treated ‘optimally’, such as
altering when they have surgery or the chemotherapy regime they receive might be changed; and this has to be weighed against the risk to the patient if they get Covid-19 when on these treatments.
This is an extremely delicate balancing exercise. There is also no guidance for what decisions a clinician should make for individual patients, so there is likely to be differences in approach across the country.
Hospitals will sadly also have to consider whether they have the necessary resources to safely deliver cancer treatments, including surgeries. As the number of staff in the NHS requiring to self-isolate increases, the number of staff available for such procedures and treatments will diminish.
The staff that previously frequented oncology wards will also be gradually redirected to the front lines to treat those with Covid-19.
There have been concerns about supply of some chemotherapy drugs though at the time of writing, these do not seem to have occurred.
The prioritising of cancer surgeries is more difficult. At present, many cancer surgeries are not considered an emergency. They are certainly classified as urgent, but some surgeries, particularly where the cancer is incurable though not causing symptoms that immediately require intervention, may be classified as non-emergent.
The NHS target for cancer treatment is for a patient to be seen within two weeks of referral from their GP by a consultant, after which the patient is expected to
undergo any necessary investigations, and for the patient to then start the treatment within one month of the decision to treat being made. There will be patients whose treatments will fall outside these targets as a result of Covid-19.
The big questions for these patients will be whether or not their cancer treatment has been compromised by any delay and/or change in their treatment. This will be a waiting game for these patients. A short delay in treatment is unlikely to have a significant impact on a cancer patient’s prognosis but there will be patients who do unfortunately suffer as a result of the delay.
It does seem that cancer patients and their treatments will be protected as much as possible and for as long as possible.
If you have any concerns regarding your cancer treatment, you should first speak to your oncologist.
If you are unhappy with the response, then you may want to consider a complaint to the hospital.
Will life-saving or emergency procedures be cancelled because of Coronavirus?
Life has not entirely stopped as a result of Covid-19 and not everyone requiring emergency hospital treatment will have Covid-19. The general population will still have accidents and still get ill. A child with appendicitis for example, is still going to need their appendix removed. The NHS therefore does
need to continue to provide emergency and life saving procedures for in the event that patients have to attend hospital due to non-Covid-19 conditions.
Such procedures should take place as soon as practicably possible. The hospital may need to consider their available resources such as availability of operating theatre, surgeons and operating staff. There is likely to be increased pressure on these resources so short delays in accordance with supply and demand may be expected.
If a protracted delay occurs and the patient suffers harm that would usually have been avoided, this is likely to remain a breach of duty of care.
How will the NHS prioritise procedures during the Covid-19 outbreak?
The NHS has always prioritised procedures in the NHS. However, the added pressures of Covid-19 makes it increasingly important that hospitals do so appropriately.
There are always stories in the NHS of patient’s admitted on the day of surgery, only to have it cancelled as new, emergency patient’s had to take priority. One would anticipate that this will remain the case. The difference will be that instead of having to prioritise emergent vs non-emergent procedures up to now; for at least the next three months, the priority will be between patients’ requiring treatment for Covid-19 and emergency patients requiring procedures.
Prioritising is entirely reasonable and has been necessary in the NHS for many years. The prioritisation of patients should remain in accordance with their clinical need and the urgency of their condition, rather than any formal guidelines or usual waiting times (pre-Covid-19).”
Will patients be discharged early from hospital to make bed space for Coronavirus patients?
Bed capacity in hospitals is now at a premium. For existing patients, it is understandably an anxious time being in hospital. The NHS, in an effort to free up bed space, has issued guidance encouraging hospital staff to discharge patients as soon as they are fit for discharge.
In theory, this should not significantly change when a patient is ready to be discharged as any patient who is fit and ready to go home should be routinely discharged at the earliest opportunity.
However, for some patients, they will be concerned that they are being discharged too early or without adequate support at home. Practically, it is likely that some patients will be discharged sooner than they would have been, had Covid-19 not occurred.
The updated guidance clearly sets out when a patient should be considered fit for discharge, under what they have termed the ‘discharge-to-assess’ model, and what is required of the hospital in particular with regards to follow up support in the community and/or rehabilitation or residential accommodation if required.
The guidance requires that:
- The patient is discharged from the ward within an hour and taken to the discharge lounge, where they should be transported home within two hours. If the patient does not have support at home, then the voluntary sector should ensure the patient has access to essentials, such as heating and food.
- A clinician should visit the patient within 24 hours or so to arrange any necessary support whilst the patient is at home, unless this was done prior to discharge from hospital.
- Patients who require more support than they are able to get in their own home will be provided with a bed in a care home or similar. Patients will not have a choice over which care home they are sent to.
- For those in their own home, the patient is to be given the telephone number of the ward to call if they require further advice. The guidance specifically states that patients should not be told to attend their GP or A&E to minimise the impact on these services.
- Patient’s should receive a telephone call the day after their discharge to check on them and offer any advice they need, and also to inform patients of any test results or changes in how their condition will be managed moving forward.
- Community care teams and social care should also provide equipment, physiotherapy and other support following the discharge.
If a patient does not receive the support they need, they should call the ward number they have been provided in the first instance. On a practical basis, they may also want to contact NHS volunteers and charities to secure the assistance they need.
Contacting GPs and 111 should be considered an absolute last resort.
If a patient becomes unwell after an early discharge however, they may need to be re-admitted.
Whilst some re-admissions will have been unavoidable, such as where a patient develops a post-operative infection after discharge from the hospital, there may be patient’s whose re-admission was avoidable had they not been discharged quite so early.
More information can be found by following this link.
